SAN MARCOS, Texas -- This past August 30, San Marcos attorney Kyle Maysel was arrested on a DWI charge after a minor traffic accident in which he backed into a stopped car. That day was the start of the first “no refusal” weekend to be conducted by the San Marcos Police Department (SMPD), a weekend when anyone arrested for DWI would not be allowed to refuse to take a breath test or a blood test to measure the alcohol content of their breath or blood.
It coincided with the Labor Day Holiday weekend (August 30-September 2). Several questions have been raised by reporters about the conduct of the police and the judge who was involved in the case.

Maysel, a well-known 55-year-old attorney in San Marcos and president of the Hays County Bar Association, was backing out of a parking space on Hopkins Street in downtown San Marcos around 10:30 p.m. He failed to notice a westbound car in a line of cars stopped for a red light at the corner of Hopkins and Guadalupe Street. Maysel’s vehicle struck the stopped car on its right rear. The drivers of both vehicles apparently drove one and a half blocks to an HEB parking lot after the accident.

San Marcos police officer Jason Scott arrived at the parking lot a few minutes later, along with another officer, to investigate the accident. During the officer’s investigation, he observed that Maysel was unsteady on his feet, had glassy eyes, slurred his speech, spoke slowly, had an odor of an alcoholic beverage on his breath, and leaned against a car for support.

Maysel also exhibited six “clues” related to intoxication on the Horizontal Gaze Nystagmus (HGN) test, during which Maysel had difficulty following the officer’s instructions to put his feet together, to put his hands down to his side, and to follow the procedure requested. The officer had to repeat his instructions many times over a nearly 10-minute period.

The HGN test requires an officer to watch the action of a subject’s eyes to determine whether they bounce or jerk unusually as they track the horizontal movement either of an object held by the officer or the officer’s finger. The inability of the eyes to track smoothly can be caused by excessive alcohol use, as well as many other factors.

Maysel had to be told several times to follow the officer’s finger with his eyes as he moved his finger in front of Maysel’s face from side to side. The officer reported that Maysel became argumentative about the HGN test and the officer’s observation that he was unsteady on his feet.

When first contacted by the officer, Maysel was confused about where his driver’s license was, believing he had given it to another officer before finding it in his shirt pocket. Maysel admitted to backing into the stopped car, and refused to perform any other standard field sobriety tests, which usually include the one-leg stand, and the walk-and-turn test. Initially, Maysel agreed to do the one-leg stand on a flat surface, but after moving to a flat area, Maysel refused the test.

The officer’s conversation with Maysel contained further confused statements related to how much he had to drink. At first, Maysel responded that he had a couple of drinks. Later, he said that he had three or four drinks while watching a football game. Maysel refused to take both a breath test and a blood test to determine alcohol concentration in his body after having been read a statutory warning that a refusal would result in the loss of his driver’s license for at least 180 days.

Two other police officers, Don Lee and Tony Scott, assisted with the investigation. Officer Tony Scott explained the “No Refusal Blood Draw” program to Maysel. Upon learning that District Judge Bill Henry would be asked to issue the warrant for the blood draw, Maysel told the officers that he knew Judge Henry.

Maysel was handcuffed and arrested. His car was left in the parking lot since it was parked legally and no one could be found to drive it away. Maysel was driven in a patrol car to Central Texas Medical Center (CTMC), which has an informal agreement with SMPD to do blood draws for its “no refusal” initiative.

A search warrant to authorize the blood draw was prepared and signed by officer Jason Scott after he swore to the affidavit supporting the warrant during a telephone conversation with Judge Henry, who then asked for the warrant and affidavit to be taken to him at his home for his review and signing. This was done by officer Tony Scott.

Forty-five minutes later, Officer Tony Scott arrived back at the CTMC and informed the arresting officer, Jason Scott, that Judge Henry refused to sign the warrant for the blood draw because Judge Henry “has a working relationship with Maysel and knows about his (Maysel’s) drinking problem (which) he felt... made him subject to being called as a witness should the case come to trial.”

Further, Judge Henry “stated he was with Maysel (that day) during a retirement party at the Courthouse around noon.” The report by Officer Tony Scott states further, “The Judge denied there being alcohol at the party but stated Maysel has a drinking problem he (Judge Henry) is aware of.” All of the quotes are taken from Officer Scott’s written report.

The arresting officer decided not to pursue the arrest of Maysel, drove him to his truck so that Maysel could retrieve some personal belongings, warned Maysel against driving his vehicle again that night, and gave him a ride to his home. The officer did check the parking lot later in the night to make sure Maysel’s vehicle was still parked there.

This case brings up several issues that may be confusing to the average person, as well those who have a working knowledge of police procedure:

Why wasn’t there another judge who could have signed the warrant?

Why is it constitutional to take a blood sample against a person’s wishes?

Why would Judge Henry recuse himself from participating in the issuance of a warrant to take a sample of Maysel’s blood?

Why wasn’t a DWI charge pursued after Maysel’s arrest even though no breath or blood specimen was provided?

In an interview with San Marcos Police Chief Howard Williams, he explained that the Labor Day weekend was the first time that the SMPD had tried to do a “no refusal” program and ironically the first case it attempted revealed an unanticipated glitch in the program.

The SMPD had asked Judge Henry if he would be willing to participate in the program. He is one of two district judges who live in or around San Marcos. No one had thought about what to do if, for some reason, Judge Henry believed that it would be improper to issue a warrant for a blood draw on a subject.

State law allows only certain judges or magistrates to issue blood draw warrants -- they must be attorneys. This requirement leaves out all of the Justices of the Peace who are not attorneys, which includes all now serving in Hays County. Also, municipal court judges must serve in municipal courts of record to be allowed to issue blood draw warrants, but the judge for the San Marcos Municipal Court, which is a court of record, had not previously been contacted about the program.

This left only three judges who reside in Hays County, other than Judge Henry, who were eligible to issue a blood draw warrant for Maysel. Because no plans had been made for a substitute judge to issue a blood warrant, there was inadequate time to find another judge who was eligible to issue a warrant, and the police thought that perhaps all of them would find themselves unable to issue such a warrant for the same reasons given by Judge Henry.

The constitutionality of using a warrant to draw a blood sample in a DWI case has been settled law under the U.S. Constitution since 1966, when the U.S. Supreme Court held that blood samples may be taken provided that the requisites of the Fourth Amendment are met.

In Texas 11 years ago, the Texas Court of Criminal Appeals made clear that this was the law in Texas provided that the warrant is based on sufficient probable cause; that is, the officer must explain precisely, in a written affidavit, what evidence exists that the person whose blood is sought may be intoxicated. And the magistrate issuing the warrant must be neutral and unbiased, what the law considers “detached.”

In addition to satisfying the requirements of the Fourth Amendment and its comparable provision found in the Texas Constitution for the issuance of a search warrant for blood evidence, Texas law recognizes an “implied consent” concept. That is, if a person obtains a valid Texas drivers license, the possession of which is a privilege and not a right, such a person has given “implied consent” to provide a breath or blood sample when one is requested under the proper circumstances or suffer the consequences.

In the Maysel case, that consequence will be the loss of his drivers license for at least 180 days unless an administrative law judge finds that the requisites for an arrest for DWI were not met.

The reasons for Judge Henry’s recusal from the Maysel case may be more difficult to understand. In a few situations, recusal is mandatory. The Code of Criminal Procedure provides that a judge is disqualified from hearing a criminal case if the judge is the injured party or has been the counsel for the state or the accused, or if the accused or an injured party is a close relative.

The Code of Judicial Conduct provides broader, discretionary standards, however. The Code calls for judges to maintain “high standards of judicial and personal conduct” in ways that preserve the “integrity and independence of the judiciary.” Judges are further required to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Undoubtedly, these standards weighed on Judge Henry’s decision in the Maysel case.

On the other hand, another provision of the Code of Judicial Conduct provides that judges “shall not allow any relationship to influence judicial conduct or judgment.” Arguably, a judge should not allow a professional relationship with an attorney who regularly appears before him or her to influence the performance of that judge’s duties. But another section of the same Code provides that judges should hear and decide matters that come before them “except for those in which disqualification is required or recusal is appropriate.”

Judge Henry’s knowledge about Maysel, his concern that questions might later be raised about his own impartiality, and the mixture of judicial conduct standards make it difficult to determine whether recusal was necessary. But except for mandatory disqualification situations, recusal decisions are almost always left to the discretion of the individual judge, and there are ample reasons to support Judge Henry’s decision in this case.

The reasons a DWI charge was not pursued can be found mainly in officer Jason Scott’s report of the incident. At one point during the interchange between Scott and Maysel, his lapel microphone malfunctioned. The HGN test took an excessive amount of time. There were time delays caused by the relocation from the HEB parking lot to one that was more level across the street from HEB.

Fulfilling the procedures of the new “no refusal” program took additional time. The preparation of the warrant, the phone call with Judge Henry, and delivering the warrant to Judge Henry, after which he recused himself, took even more time. From the time Maysel left the parking lot and Officer Tony Scott arrived back at CTMC with news of the recusal action almost three hours had passed.

While this was not too long a time to secure a breath or blood test, it was apparent that neither would be taken in this case. Without a breath or blood test, the case would rest completely on the officer’s observations and the videos.

While the videos may have been sufficient, along with the testimony of three officers about Maysel’s condition and behavior, officer Jason Scott decided not to pursue the arrest further, something that is within his discretion to decide, though it is not unreasonable to let that decision be made by the district attorney, whose job it is to prosecute such cases.

I did not talk to any of the officers involved in the Maysel case, but I will note that I have represented clients formally charged with DWI in which the evidence against them was less than the evidence amassed against Maysel.

While the state has a more difficult time prosecuting such cases, they regularly do so, especially when the video evidence clearly demonstrates that the accused was impaired. In addition, there were at least two civilian witnesses to Maysel’s actions and demeanor at and immediately after the time of the accident. Their testimony, as well as the testimony of people in the bar where Maysel had been drinking, could have been sought.

After reviewing all of the reports provided by the SMPD, as well as the videos taken by the department’s in-car cameras, I was left with the impression that the officers had little confidence in their conclusions about Maysel’s intoxication. With additional training, they might feel more secure in pursuing DWI charges that lack more conclusive evidence than was available in this case.

Chief Williams has already taken steps to assure the availability of a judge who is less likely than Judge Henry to have personal or professional relations with local attorneys the next time the SMPD has a “no refusal” weekend.

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